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Court confirms Calderbank offers are admissible on appeal

FPR 28.3(8) applies only to first instance proceedings

In WD v HD [2015] EWHC 1547 (Fam) Mr Justice Moor was called upon to consider, amongst other matters, whether a Calderbank offer was admissible in relation to an appeal. His lordship reminded himself that the relevant rule was FPR 28.3(8) which provides that (emphasis added):

'(8) No offer to settle which is not an open offer to settle is admissible at any stage of proceedings, except as provided by rule 9.17.'

On the basis that:

a. the definitions of financial remedy proceedings in rules 28.3(4) and 2.3 make no mention of appeals;

b. the Court of Appeal in Judge v Judge [2008] EWCA Civ 1458 held that an application to set aside a consent order was not financial remedy proceedings; and

c. there was a need both to encourage settlement and to enable parties to protect themselves from the damaging cost of appeals,

His Lordship held that the above rule referred to first instance proceedings. An appeal was therefore outside of the scope of the no order as to costs principle.

For the judgment and the full summary by Ben Wooldridge of 1 Hare Court, please click here.